Bombay High Court
Shrirang Patilba Aher vs Chief Executive ... on 19 July, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2565 OF 1998
WITH
CIVIL APPLICATION NO. 10102 OF 2016
IN WP/2565/1998
Shri Shrirang s/o Patilba Aher,
Age : 30 years, Occupation : Unemployed,
R/o at Apegaon, Tal.Kopargaon,
District Ahmednagar.
...PETITIONER
-VERSUS-
Chief Executive Officer,
Zilla Parishad,
Ahmednagar.
...RESPONDENT
...
Advocate for Petitioner : Shri Dhage Babasaheb V.
Advocate for Respondent : Shri S.T. Shelke
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 19th July, 2016
Oral Judgment :
1 The Petitioner, who is the Applicant in the Civil Application,
requests through the said application that Writ Petition No.2565/1998 be
heard urgently since it is pending final hearing for almost 18 years.
2 On instructions from the Petitioner, who is present in the
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Court, Shri Dhage, learned Advocate submits that the petition itself may
be heard today.
3 Shri Shelke, learned Advocate for the Respondent/ Zilla
Parishad, does not oppose.
4 In the light of the above, the Civil Application is allowed and
the Writ Petition is taken up for final hearing forthwith.
5 I have considered the strenuous submissions of the learned
Advocates for the respective sides.
6 It is not in dispute that the Labour Court has, by it's ex-parte
award dated 12.08.1996, allowed Reference IDA No.18/1993 and thereby,
granted reinstatement with continuity and full back-wages to the
Petitioner/ workman from 29.01.1986. It is also undisputed that the
Respondent/ Zilla Parishad did not participate in the reference
proceedings, did not file it's Written Statement and did not oppose the
reference. It is equally undisputed that in the entire award, the conclusion
of the Labour Court is in one sentence which is "I have no reason to
disbelieve the contents of affidavit Exhibit U-7.".
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7 Exhibit U-7 is the affidavit of the worker in lieu of
Examination-in-Chief. Neither was he cross-examined nor was any
documentary evidence placed on record to indicate that he was working
from 13.01.1979 upto 28.01.1986.
8 The award dated 12.08.1996 was published by the Labour
Court as per the scheme of the Industrial Disputes Act, 1947 on
31.08.1996. The Respondent/ Zilla Parishad preferred Miscellaneous
Application No.16/1996 within 30 days on 24.09.1996 from the date of
publication of the award.
9 The Labour Court considered the said miscellaneous
application praying for recalling of the award and restoration of the
reference proceedings. By the judgment dated 25.09.1997, the ex-parte
award was set aside and the reference was restored.
10 The grievance of the Petitioner/workman is that when he had
worked for seven years and in the light of the failure of the Zilla Parishad
to participate in the proceedings, the clock cannot be reversed practically
by 20 years and the matter cannot now be restored before the Labour
Court for adjudication. He, therefore, prays that this petition be allowed.
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11 In the alternative, he prays that the impugned order be set
aside and by restoring the award, this Court may consider the merits of
the matter. By way of a second alternative and on instructions from the
Petitioner, present in the Court, it is submitted that this Court may
quantify the compensation in lieu of reinstatement, continuity of service
and back-wages.
12 Shri Shelke, learned Advocate for the Respondent/ Zilla
Parishad, has submitted that this petition was admitted on 26.06.1998. No
relief was granted to the Petitioner. There is no dispute that the Zilla
Parishad did not participate in the reference proceedings. However, it
cannot be ignored that there was neither any documentary evidence
available before the Labour Court, nor was there corroborative evidence
on the strength of which the reference could have been allowed. He,
therefore, submits that merely because an affidavit has been filed, the
reference could not have been allowed based on the affidavit in the
absence of evidence.
13 Insofar as the prayer for compensation is concerned, Shri
Shelke submits that the Petitioner does not deserve any compensation. His
service was engaged intermittently and cannot be said to be of continuous
nature. He, therefore, opposes the prayer for compensation and submits
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that this petition be dismissed with costs. He further submits that the Zilla
Parishad is prepared to go back to the Labour Court in the reference
proceedings, which have been restored and contest the reference on it's
merits.
14 The fact situation as above is self explanatory. The Petitioner
is out of employment for 30 years. He claims to be in employment for
seven years which version was accepted by the Labour Court when the
award was delivered.
15 The Honourable Supreme Court, in the following four
judgments, has laid down that where a short spell of employment is
followed by a long duration of unemployment, rather than granting
reinstatement with or without back-wages, the Court could quantify the
compensation :-
(a) Assistant Engineer, Rajasthan State Agriculture Marketing
Board, Sub-Division, Kota Vs. Mohanlal, [2013 LLR 1009];
(b) Assistant Engineer, Rajasthan Development Corporation and
another Vs. Gitam Singh, [(2013) 5 SCC 136];
(c) BSNL Vs. Man Singh, [(2012) 1 SCC 558]; and
(d) Jagbir Singh Vs. Haryana State Agriculture Marketing Board,
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[(2009) 15 SCC 327].
16 The ratio laid down by the Honourable Apex Court in the
above four judgments is that an amount of Rs.30,000/- per year of service
put in by the employee, can be sufficient compensation. It cannot be
ignored that the proceedings before the Labour Court in Reference IDA
No.18/1993 were pending from 1993 till 12.08.1996. The Petitioner has
specifically averred that he was continuously working as Muster Assistant
from 13.01.1979 till 28.01.1986. 'No W.S.' order against the Respondent/
Zilla Parishad was passed on 18.02.1994. The reference was, therefore,
decided practically after two years and six months. For the fault of the
Zilla Parishad, the Petitioner, who has crossed the age of superannuation,
cannot be subjected to rigours of litigation and manifest inconvenience. It
also cannot be ignored that he is without employment for the last 30
years.
17 Considering the above, I deem it proper to follow the view
taken by the Honourable Supreme Court in the above referred four cases
and bring this litigation to an end by granting compensation to the
Petitioner.
18 In the light of the above, the impugned order dated
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25.09.1997 is set aside and the award dated 12.08.1996 is modified as
follows:-
(a) The Respondent/ Zilla Parishad shall pay the Petitioner
compensation at the rate of Rs.30,000/- (Rupees Thirty
Thousand) per year of service put in by him.
(b) The above said compensation would, therefore, be an
amount of Rs.2,10,000/- (Rupees Two Lac Ten
Thousand) which the Respondent/ Zilla Parishad shall
pay to the Petitioner within a period of TWELVE WEEKS
from today, failing which the said amount shall carry
interest at the rate of 6% per annum from the date of
this judgment till it's actual payment.
19 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
